The STATE of Arizona, Appellee, v. Fred Lee OWEN, Appellant
No. 1281
Supreme Court of Arizona
July 13, 1964
Rehearing Denied Sept. 22, 1964
394 P.2d 206 | 96 Ariz. 274
Chаrles N. Ronan, Maricopa County Atty., and Ralph L. Fenderson, Jr., Deputy County Atty., for appellee.
PER CURIAM:
Appellant pled guilty in thе Superior Court to two counts of illegal sale of narcotics (heroin) and was sentenced to a term of not lеss than ten, nor more than fifteen years, on each count; sentences to run concurrently. He was representеd by counsel at the preliminary hearing and at the trial.
Appellant filed his notice of appeal in propriа persona and counsel was appointed, pursuant to
A motion was filed by appointed counsel for the furnishing of a certified copy of the record on appeal and for the reporter‘s transcript, which was granted. Counsel then filed a motion in this court setting forth that he had received a certified сopy of the record on appeal and diligently read, studied and searched the same but had been unable tо find grounds upon which an appeal could be based. This court ordered the case submitted. Having examined the reсord and transcript, we have found no reversible error. State v. Burrell, 96 Ariz. 233, 393 P.2d 921.
Judgment affirmed.
UDALL, C. J., LOCKWOOD, V. C. J., and STRUCKMEYER, BERNSTEIN and JENNINGS, JJ., concur.
Royal, Carlson & Kaul, Tucson, for appellant.
LOCKWOOD, Vice Chief Justice:
The Supreme Court of the United States, 84 S.Ct. 1932 granted a petition for a writ of certiorari in this case 94 Ariz. 904, 385 P.2d 700 (1963), and entered the following order: “The judgment of the Supreme Court [of the State] of Arizona is vacated and the case is remanded for further proceedings not incоnsistent with the opinion of this Court in Jackson v. Denno, 84 S.Ct. 1774.”
The only issue decided in the Jackson case is the correct trial procedure when a purported confession is offered and a question is raised as to whether it is voluntary or involuntary. In Jackson, the Supreme Court held that when this question is raised the trial judgе must first hear the evidence regarding the confession outside the presence of the jury. He must then make a definite determination whether the purported confession was voluntary or involuntary. If he determines it was involuntary it may not be admitted in evidence. If he determines it was voluntary, he may admit it for consideration by the jury. He may not submit it to the jury merely upon a finding thаt there is a conflict in the evidence, without himself first definitely resolving the conflict.
The Supreme Court affirmed the procedure referred to as the Massachusetts rule in the following language:
“In jurisdictions following this [Massachusetts] rule the judge hears the confession evidence, himself resolves evidentiary conflicts and gives his own answer to the coercion issue, rejecting
confessions he deems involuntary and admitting only those he believes voluntary. It is only the latter confessions thаt are heard by the jury, which may then, under this procedure, disagree with the judge, find the confession involuntary and ignore it.”
In the present case, appellant complained that the trial court refused to allow a hearing in the absence of the jury concerning the voluntariness of a purported written “confession” by the appellant Owen, and the court failed to distinguish between a confession and an admission in its instructions to the jury. We stated in answer to this issue that the written statement which was the basis of the court‘s action was not a confession, but was an exculpatory statement, and found that the assignment of error was therefore without merit.
Jackson, to which the Supreme Court of the United States refers us as the standard to fоllow in this case, deals only with a determination of voluntariness of a confession. We are here concerned with an “exculpatory statement” in the nature of an admission against interest rather than a confession. However, since the Supreme Court vacated the judgment of this Court we are of the opinion that it was intended that we follow the rule that statements or admissions, which have been induced by a method in violation of a defendant‘s constitutional rights, are subjеct to the same exclusionary rule as a confession. See Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963); Hall v. Warden, Marylаnd Penitentiary, 4 Cir., 313 F.2d 483 (1963).
Upon re-examination of the reporter‘s transcript, it appears that when the state offered a written statement (Exhibit 9) of the defendant into evidence, counsel for the defendant objected and requested а “private hearing” for the reason that he felt there was a possibility of coercion in obtaining the “instrument“. The judge refused a private hearing. In the presence of the jury he expressed his opinion that prima facie there had been sufficient foundation to admit the “statement” into evidence. He further stated that if there was conflicting or contradicting evidence, it was merely a matter of credibility or weight and that “the jury is always instructed as to statements and as to confessions that they must be voluntary and they are the ones to determine on the evidence presented as tо the manner and time of taking and so forth as to whether or not it was voluntarily given.”
The trial judge‘s statement that it was for the jury to dеtermine the question of voluntariness of a statement or confes-
For the foregoing reasons the former mandate herein is set aside and the case is reversed and remanded for new trial not inconsistent with the rules set forth herein.
UDALL, C. J., and JENNINGS, J., concur.
STRUCKMEYER and BERNSTEIN, Justices (concurring).
We concur in the foregoing decision. For the reasons stated and for the further reasons expressed in our dissents in 94 Ariz. 412, 385 P.2d 705 (1963), we believe this case should be reversed and remanded for a new trial.